The Queen (on the application of Noel Douglas Conway) v Secretary of State for Justice Crown Prosecution Service (Interested Party) Attorney General (Interested Party)
|England & Wales
|Queen's Bench Division (Administrative Court)
|Lord Justice Burnett,Mr Justice Charles,Mr Justice Jay
|30 March 2017
| EWHC 640 (Admin)
|Case No: CO/6421/2016
|30 March 2017
 EWHC 640 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Burnett
Mr Justice Charles
Mr Justice Jay
Case No: CO/6421/2016
Richard Gordon QC, Alexander Ruck Keene and Annabel Lee (instructed by Irwin Mitchell) for the Claimant
James Strachan QC and Benjamin Tankel (instructed by the Government Legal Department) for the Defendant
The Interested Parties were not represented
Hearing date: 21st March 2017
The claimant, Noel Douglas Conway, seeks a declaration pursuant to section 4(2) of the Human Rights Act 1998 that section 2(1) of the Suicide Act 1961 ("the 1961 Act") is incompatible with his rights under articles 8(1) and 14 of the European Convention on Human Rights ("the ECHR"). The matter comes before us to consider the question of permission to apply for judicial review pursuant to an order of Blake J of 6 February 2017.
Mr Conway is now 67 years old. In November 2014, having previously been fit and active, he was diagnosed with Motor Neurone Disease. That is a degenerative and terminal illness. The progress of the disease varies between different sufferers. But a time will come when Mr Conway will be told that he has less than six months to live. His wish at that point, and whilst he retains the capacity to make the decision, would be to enlist the assistance of a medical professional or professionals to bring about his peaceful and dignified death. It is a wish shared by many afflicted with neurological diseases and others who must contemplate the future of a body that has failed completely whilst a mind that remains acute. Mr Conway wishes to remain in control of the final acts that would be required to enable him to ingest or otherwise administer the medication necessary to bring about his death. By the time he is ready to end his life he may well no longer be able to take the active steps to achieve it. He will certainly need assistance, at the least.
Section 2(1) of the 1961 Act criminalises those who provide such assistance to individuals who wish to commit suicide. The question whether someone will be prosecuted for assisting suicide is governed by a detailed policy promulgated by the Director of Public Prosecutions. There are in fact almost no such prosecutions. The policy was formulated in 2010 in response to the decision of the House of Lords in , and was refined in 2014 following the decision of the Supreme Court in , .
In the Nicklinson case a similar declaration of incompatibility with Article 8 ECHR was sought but refused by the Supreme Court. By a majority of seven to two the court refused to make the declaration. It was not "institutionally appropriate" to do so. The argument advanced in that case was the same in material respects as that deployed by Mr Gordon QC on behalf of the claimant in these proceedings. The inflexible nature of section 2(1) of the 1961 Act, which admits of no carefully crafted and policed exceptions to criminality for those who assist suicide, is a disproportionate interference with the article 8 rights of someone who wishes to end his life, but is unable to do so without assistance. The essential question in this application is whether the circumstances which led the Supreme Court to refuse to grant the declaration in June 2014 have changed so that a different outcome could be possible today. I note that Mr Conway seeks a declaration of incompatibility with Article 14 ECHR in addition to Article 8 ECHR. No such declaration was sought in the Nicklinson case, not least because earlier authority precluded such a course. To my mind, there can be no realistic prospect of the claimant succeeding under Article 14 ECHR if he is unable to succeed under Article 8 ECHR.
I have concluded that permission to apply for judicial review should be refused. The core reason for doing so is that Parliament has reconsidered the issue of assisted dying following the decision of the Supreme Court in Nicklinson, as that court encouraged it to do. Both the House of Commons and the House of Lords have debated the matter in the context of bills proposing a relaxation of the strict application of section 2(1). The result is that Parliament has decided, at least for the moment, not to provide for legislative exceptions to section 2(1) of the 1961 Act. The policy of the DPP has also been subject to parliamentary scrutiny and debate. That controls the practical application of the statutory provision. The Strasbourg court has ruled that the question whether there should be exceptions to a blanket ban on assisting suicide falls within the margin of appreciation of the State parties to the ECHR. Whilst the Nicklinson case recognised a jurisdiction in the courts to issue a declaration of incompatibility in these circumstances, even where Parliament had struck the balance for itself, the Supreme Court also recognised that Parliament was better placed to resolve these sensitive issues. For the purposes of CPR Part 54, I do not consider that it is arguable that a declaration of incompatibility should be made, in the light of the post Nicklinson parliamentary consideration of this very difficult moral issue.
The Nicklinson case was heard by a panel of nine justices, each of whom gave a judgment. Both Mr Gordon and Mr Strachan QC, who appears on behalf of the Secretary of State, analysed the judgments in considerable detail in their written materials and in oral argument directing our attention to many passages in each of the judgments. The issue for us to determine is whether the parliamentary consideration of possible amendment to section 2(1) of the 1961 Act which has followed Nicklinson has necessarily shut the door to a declaration of incompatibility.
The nine justices divided into three broad camps. Lady Hale and Lord Kerr would have made a declaration of incompatibility because section 2(1) "fails to admit of any exceptions", as Lady Hale put it in para 301. The decision of the Strasbourg Court in , that the blanket ban did not breach Mrs Pretty's article 8 rights, would not preclude a domestic court from finding, in similar circumstances, that it would. I hope I do no disservice to the subtlety of the two judgments by summarising their collective view as being that unless Parliament devised a scheme which admitted of exceptions to section 2(1) the incompatibility would persist. Both Lady Hale and Lord Kerr recognised that Parliament might take a different view and decline to change the law, as the Human Rights Act 1998 allows.
Lord Sumption and Lord Hughes considered that the question of relaxation of section 2(1) was for Parliament: see, in particular, paras 230 to 232 in the judgment of Lord Sumption. Parliament could properly conclude that a blanket ban on assisted suicide was "necessary" for the purposes of article Parliament had already determined the issue.
The position of the remaining five justices fell between these two settled views.
Lord Neuberger of Abbotsbury identified the following issues:
i) Is section 2 of the 1961 Act within the United Kingdom's margin of appreciation under article 8?
ii) Is it constitutionally open to the United Kingdom courts to consider compatibility?
iii) Is it institutionally appropriate to consider whether section 2 infringes article 8?
iv) Should the court grant a declaration of incompatibility?
Further issues arose in connection with a challenge to the legality of the DPP's policy.
In view of the decision of the Strasbourg court in the Pretty case all the justices agreed that the answer to the first question was "yes". On issue (ii), Lord Neuberger concluded that it was open to a court to consider the question of compatibility but in answer to the third question, he considered that it was not institutionally appropriate to do so at that time. In consequence, the fourth question did not strictly arise but Lord Neuberger explained that he would not have made a declaration of incompatibility in any event because of the unsatisfactory state of the evidence and argument available to the court.
Mr Gordon submits that the reasons why it was institutionally inappropriate to make a declaration of incompatibility are arguably no longer applicable and the evidential deficiencies identified by Lord Neuberger can be made good in these proceedings.
Lord Neuberger dealt with the third issue between paras 77 and 118 of his judgment. He recounted the argument in support of the proposition that the issue should be left to Parliament between paras 99 and 110. He recognised that judges should be very cautious before exercising the power under section 4 of the 1998 Act, given that Parliament had considered whether to relax the strictures of section 2 of the 1961 Act in 2009, when it was amended, and the question had been debated on other occasions (para 103). There was a bill before Parliament at the time of the Nicklinson case. His conclusions on this issue follow between para 111 and 118.
Lord Neuberger considered that it would be wrong in principle to rule out the possibility of a declaration where the court has jurisdiction, relying only on the contention that Parliament had considered the issue (para 112). But Parliament should be afforded the opportunity of deciding "whether to amend section 2" (para 113). In para 116 he explained that there were various reasons why it would be...
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